Apple v. State

• Decision Date: 26 May 1948
• Docket Number: 167.
• Citation: 59 A.2d 509,190 Md. 661
• Parties: APPLE v. STATE.
• Court: Maryland Court of Appeals

59 A.2d 509

190 Md. 661

APPLE v. STATE.

No. 167.

Court of Appeals of Maryland

May 26, 1948

Appeal from Criminal Court of Baltimore City; J. Abner Sayler Judge.

Daniel Apple was convicted of assault and battery, and he appeals.

Judgment affirmed.

Samuel K. Dennis and Paul Berman, both of Baltimore (Sigmund Levin and Theodore B. Berman, both of Baltimore, on the brief), for appellant.

Richard W. Emory, Deputy Atty. Gen. Hall Hammond, Atty. Gen., and J Bernard Wells, State's Atty., of Baltimore on the brief) for appellee.

Before MARBURY, C.J., DELAPLAINE, COLLINS, and HENDERSON, JJ., and BAILEY, (specially assigned), Circuit Judge.

MARBURY Chief Judge.

The appellant was tried before a jury in the Criminal Court of Baltimore City, convicted of assault and battery, and sentenced to 30 days in jail and to pay a fine of $100.00. He has appealed, and in his appeal raises four questions, one involving the ruling of the court on testimony, another relating to alleged misconduct of the prosecuting attorney, the third questioning the punishment as being cruel and unusual and in violation of the provisions of the Federal and State Constitutions, and the fourth, what he terms general prejudicial conduct of the trial court.

The alleged assault occurred on a picket line of the Industrial Union of Marine and Ship Building Workers of America, while picketing the Jackson Street gate of the Key Highway Yards of the Bethlehem Steel Company's Ship Building Division in Baltimore City. The Union had been on strike since June 25, 1947. The alleged assault occurred on September 29, 1947 at about 6:50 o'clock in the morning. Approximately 100 pickets were patrolling the gate, of whom the appellant was one. A man named Kimmel was diriving his automobile in the yard and through the picket line. Some of the pickets got on his automobile, and two police officers came over to get the men off. The window of his car was down and, as he testified, 'something come through my window' and hit him on the jaw. When he was about to be hit, he ducked and his hat came off, and the man who hit him grabbed it, and it was thrown over the fence. Kimmel stopped his car and got out, but told the officer he did not want to prosecute. Officer Harris, assigned to duty on the picket line, testified that he saw appellant go up to the driver's side of the car and reach in, and that Kimmel's head went over to the side, and appellant took Kimmel's hat, and threw it into the road bed. Harris grabbed the appellant who pushed him in the chest, and he thereupon arrested him. He subsequently let him leave the scene when Kimmel said he did not want to prosecute him. However, a warrant was later issued, charging appellant with assault upon both Kimmel and Harris. When he was brought before the magistrate, the latter, on behalf of the State, prayed jury trials. Appellant was indicted not only of assault on Kimmel, but also on the officer. He was convicted of assaulting Kimmel, but was acquitted of assaulting the officer.

On the cross-examination of officer Harris, he was asked 'Wasn't it true that the Bethlehem Steel Company was feeding the police, giving them sandwiches and coffee down on the picket line?' The court sustained an objection to that question, appellant made a proffer to prove this, and the court ruled out the proffer. These rulings comprise the first question raised by the appellant, who contends that such evidence should have been admitted to show that the officer was biased, and to affect the credibility of his testimony. The question and the proffer were not directed to any food or drink received by the officer who was testifying, but were general in their nature, and could have had no special bearing on the credibility or bias of this particular officer. They were not in any way pertinent to the issue before the jury, and their only purpose could have been to create prejudice against the police force. The range of cross-examination is wide, but it cannot be extended beyond the pertinent issues in the case. It is and must be left largely to the discretion of the trial judge as to the latitude allowed, and unless there is clear error, (which we do not find in this case) the ruling of the lower court will not be disturbed. Regester v. Regester, 104 Md. 1, at page 13, 64 A. 286; Alford v.

United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, at page 694 .

The record shows that in his address to the jury, the Deputy State's Attorney stated to the jury that he would not be there addressing them, and asking for a conviction of the defendant, unless he believed the defendant guilty as charged, that if the defendant were not guilty, he would not ask for a verdict of guilty, that when a defendant was not guilty he always told the court so, just as he did during that same morning in another case, ever though in that case the defendant had, in fact, plead guilty, and just as an Assistant State's Attorney had informed the court on the same morning, that he did not think the evidence warranted a conviction in the case of another defendant who was being tried on a charge growing out of the same strike in which the defendant here was involved, and the court had found the defendant in that case not guilty because of the Assistant State's Attorney's statement. The appellant claims that this was not legitimate argument, and that the making of such statements deprived the appellant of a fair and impartial trial, and constituted a denial of due process. It is, of course, improper for a prosecuting officer to assert his personal belief or personal conviction as to the guilt of the accused, if that belief or conviction is predicated upon anything other than the evidence in the case. But upon the other hand, a prosecuting officer has the undisputed right to urge that the evidence convinces his mind of the accused's guilt. Riggins v. State, 125 Md. 165, at page 174, 93 A. 437, Ann.Cas.1916E, 1117. The remarks made by the Deputy State's Attorney in this case were part of his closing address, after the jury had heard the evidence, and there is nothing to show that what he said was based upon any personal opinion of his own, derived from circumstances outside of the evidence, and was not his conclusion from the testimony which the jury had heard. He was clearly within his rights in expressing his opinion based upon the evidence, and the fact that he emphasized this by saying in effect that it was the policy of the State's Attorney's office not to ask for a verdict of guilty if it was not convinced that an accused had committed the crime for which he was charged, added emphasis to the view already expressed that the evidence in the case before the jury was sufficient to convict, and that the prosecuting officers thought so. We can see nothing in these assertions or statements which deprived the appellant of a fair or impartial trial or denied him due process.

The question is not properly before us for review. The appellant made no objection, nor did he ask the court to withdraw a juror or to instruct the jury to disregard the statement. We have, therefore, no ruling of the lower court before us upon which we can base our decision. Luray v. State, 157 Md. 635, 147 A. 599; Niemoth v. State, 160 Md. 544 154 A. 66. Rules 9 and 17 of our Rules and Regulations Respecting Appeals. We do not think the necessity of having a ruling by the lower court was disregarded in the case of Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734, at page 741, cited by appellant as authority for us to pass upon the question without regard to the mode of its presentation. In that case, which was reversed on other grounds, the court mentioned the conduct of the prosecuting attorney in making what were called 'highly prejudicial' remarks to the jury. In that case the accused did not object at the time, but objected later in the course of the court's charge to the jury. The trial court overruled the objection because it was too late,...